Public Service Amendment Bill

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• Public Service Amendment Bill
• B31-2006
• Presentation to
• Select Committee on Local Government and
  Administration, NCOP
• 5 June 2007

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OBJECTIVES OF AMENDMENT BILL (1)

• Main purpose to strengthen organisational human
  resource matters in public service
• Legislation for a single public service dealing
  with 3 spheres of government underway envisaged
  to be introduced in Parliament in 2008
• Likely date of commencement of Single Public
  Service Act is 2009
• Considered necessary to strengthen the Public
  Service Act urgently in some areas

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OBJECTIVES OF AMENDMENT BILL (2)

• Experience has shown that some organisational
  human resource arrangements in Public Service Act
  directly hampers internal efficiency and service
  delivery. These include-
• Inadequate provision for deployment of staff
• Some functions provided through
• departments not close to service delivery point
  without direct accountability decision-making
  by functionaries tasked with delivery or
• entities outside public service without direct
  control by political head

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OBJECTIVES OF AMENDMENT BILL (3)

• Public Service Act prescripts often not adhered
  to, resulting in weak organisational and HR
  practices legal disputes
• Transgressing employees resign and join other
  departments without being disciplined
• Employees dismissed for misconduct, even related
  to corruption, may be re-employed
• Some provisions have resulted in legal disputes,
  while others are obsolete, overly complex or
  conflict with other legislation

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DEFINITIONS

• Definition section replaced (cl 1), e.g.
• executive authority instead of executing
  authority
• Def. employment practice inserted
• Def. of sector members (SAPS, SANDF, Educators,
  Correctional Services, Intelligence Services
  clarified
• Def. of salary level and salary scale clarified

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POWERS OF MINISTER

• Minister for Public Service Administration
  (MPSA) enabled to apply, after consultation with
  other Ministers in question, any condition of
  service to educators/ SAPS/Correctional Services
• Aim to obtain, where desirable, greater
  alignment in conditions of service of general
  public service mentioned sectors (cl 2)
• Setting of norms standards and other functions
  of MPSA clarified (cl 2)
• Also power to establish advisory/consultative
  body iro functions of MPSA

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COLLECTIVE BARGAINING

• NB Existing provision - exercise of all powers by
  MPSA are subject to collective bargaining on
  matters of mutual interest only clarified (cl
  7(a) and (b) section 5(4) and 5(5))
• Collective bargaining takes place in Public
  Service Co-ordinating Bargaining Council (PSCBC)
  relevant sectoral bargaining council
• Collective agreements concluded iro employees
  falling under Public Service Act to be regarded
  as Ministerial determinations to enhance
  implementation compliance (cl 7)

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PROMOTIONS IN PUBLICSERVICE

• All SMS posts must be advertised outside public
  service discretion to do same for other posts
  (open competition)
• Currently, if existing employee applies for
  higher post in public service and is successful,
  he/she is regarded to be promoted
• Definition of unfair labour practice in Labour
  Relations Act includes unfair conduct relating to
  promotion
• Unsuccessful internal candidates may refer unfair
  labour practice disputes to bargaining council
  while external candidates cant
• Proposed that internal candidates be placed in
  same position as external candidates, i.e.
  neither may declare unfair labour practice
  dispute
• References in Public Service Act to promotion
  omitted (e.g. cl 14)
• NB Remedies under Employment Equity Act (unfair
  discrimination) Administrative Justice Act
  (fair administrative action) will still be
  available to both internal external candidates

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GOVERNMENT AGENCIES

• Current institutions under Public Service Act
• National departments and Offices of Premier
  Schedule 1
• Provincial departments Schedule 2
• Organisational components Schedule 3
• These institutions may be established
  disestablished by President by proclamation in
  Gazette internal organisation of public service

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GOVERNMENT AGENCIES

• New organisational form, government agencies
  within public service proposed
• Based on proposals by National Treasury DPSA
  following review of national public entities
• Head of agency to report directly to relevant
  executive authority (Minister/Premier/MEC) head
  is also accounting officer of agency
• Each agency to have principal department to
  assist executive authority with oversight (cls 9
  10)

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GOVERNMENT AGENCIES

• Agencies to be part of public service Public
  Service Act all its prescripts, apply to
  organisation governance of these agencies as
  well as its staff
• Staff are public service employees, e.g.
  appointed in terms of Public Service Act
• Matters of mutual interest subject to collective
  bargaining in Public Service Co-ordinating
  Bargaining Council (PSCBC) relevant sectoral
  bargaining council
• Agency is a body created in terms of the Public
  Service Act like a national or provincial
  department

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GOVERNMENT AGENCIES

• Agency may have original/assigned/delegated
  statutory functions
• Original legislation conferring functions
  directly on head of agency
• Assigned functions conferred on executive
  authority or official of principal department by
  national legislation may be assigned to head of
  agency in terms of Amendment Bill
• Delegated functions conferred on executive
  authority or head of principal department
  delegated to head of agency
• Difference between assigned delegated functions
• Functionary delegating remains accountable
• Functionary assigning, no longer accountable, but
  head becomes accountable

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GOVERNMENT AGENCIES

• Since Parliament by legislation conferred
  particular functions on a functionary, it is
  proposed in Bill that
• a Minister may only assign such functions to head
  of a government agency with Parliaments approval
• Such assignment must be done by notice in Gazette

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GOVERNMENT AGENCIES

• Government agencies to be listed in Schedule 3
  together with principal department
• First proposed agency is Centre for Public
  Service Innovation having Department of Public
  Service and Administration as its principal
  department
• Apart from different designations, currently no
  difference between Schedules 1 3 bodies (cl 38)
• Current Schedule 3 organisational components
  (Independent Complaints Directorate, Intelligence
  Academy Inspectorate for Social Assistance)
  proposed to be moved to Schedule 1

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GOVERNMENT AGENCIES

• How is an agency created
• President may, by proclamation, establish-
• national agency on a national Ministers request
  and advice of Minister of Finance Minister for
  Public Service Administration (MPSA)
• provincial agency on a Premiers request, after
  consultation with Minister of Finance MPSA

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GOVERNMENT AGENCIES

• For each government agency, a notice in Gazette
  must
• Must list relevant original functions of its head
• Must refer to notice/s on assigned functions
• May list delegated functions
• Must determine reporting requirements to head of
  principal department to enable head to assist
  executive authority with oversight on policy
  implementation, performance, integrated planning,
  budgeting service delivery
• May include administrative or operational matters
• May establish advisory or consultative board
  without executive functions for agency

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GOVERNMENT AGENCIES

• Main differences between departments and
  government agencies
• Government agency would be body established to
  perform specific functions
• Unlike departments, an agency would not have core
  policy development function
• Unlike most departments, agency may have assigned
  functions with accompanying direct accountability
• A government agency is to be partnered with
  department which must assist executive authority
  with oversight in respect of policy
  implementation
• Contrary to department, agency may have advisory
  or consultative board
• Mechanism to bring back to public service
  institutions outside public service which have
  functions that should be performed by
  institutions in public service

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DEPLOYMENTS

• Current Act allows transfer in public interest
  without employees consent or due process
• In Bill provision for (a) transfers within public
  service and (b) secondments to and from public
  service
• with employees consent
• without employees consent but subject to due
  process (consider employees representations)
  public interest requirement
• Express provision for continued employment
  despite transfer within public service or to
  public service from another organ of state (cls
  20, 21 22)
• E.g. to retain pensionable service leave credits

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ENHANCING COMPLIANCE

• To improve compliance with Public Service Act,
  MPSA enabled to conduct investigations make
  binding decisions in event of contraventions
• To avoid duplication, Public Service Commission
  is notified of investigations their outcome (cl
  7)
• In addition-
• executive authorities must discipline
  transgressing heads of department
• heads of department must discipline transgressing
  employees in their departments
• These transgressions to be reported to MPSA who
  is to report at least annually to relevant
  committees of national provincial legislatures
• MPSA may also report transgressing national EAs
  to Cabinet provincial EAs to provincial
  Cabinets via Premiers
  (cl 24)

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IMPLEMENTING DISCIPLINARY SANCTIONS

• Currently, head of department has power to
  dismiss employee for misconduct while
  disciplinary code provides chair at hearing
  pronounces sanction
• Disciplinary code for employees
• on levels 1 to 12 in collective agreement
• on senior management level in ministerial
  determination, but similar to one in collective
  agreement

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IMPLEMENTING DISCIPLINARY SANCTIONS

• Current process
• Disciplinary hearing - employer appoints chair
  and also person to present employers case
• Finding by chair if guilty, then pronounce
  sanction
• Employees on levels 1-12 internal appeal SMS
  employees no internal appeal
• Question If employee dont appeal or if no
  appeal, may head of department
• amend finding, i.e. guilty to non-guilty or vice
  versa?
• if guilty finding, amend sanction to lesser or
  harsher sanction?

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IMPLEMENTING DISCIPLINARY SANCTIONS

• Since disciplinary hearing aims to ensure due
  process
• propose in Bill that sanction imposed by chair of
  hearing must, subject to internal appeal (if
  any), be implemented by head of department
• (new section 16B in cl 24)

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IMPLEMENTING DISCIPLINARY SANCTIONS

• Reasons for proposal
• Employer initiates/runs disciplinary process
• Head of department appoints chair
• Head is represented at hearing by employer
  representative to be mandated by head to make
  representations
• Alignment with collective agreement protect
  sanctity thereof
• Ensure fair procedure protect independence of
  chair

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IMPLEMENTING DISCIPLINARY SANCTIONS

• Should provision be made for review by head of
  department?
• Labour Relations Act does not require internal
  appeal/review
• Review will delay process which already often
  takes to long
• Employee remains on payroll pending internal
  review
• Amounts to review of heads own decision
  (appointed chair to make decision on his/her
  behalf) tantamount to double jeopardy

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IMPLEMENTING DISCIPLINARY SANCTIONS

• Should provision be made for review by head of
  department (cont)?
• Review decision of head of department, as
  administrative decision, could be challenged ito
  Administrative Justice Act (in addition to Labour
  Relations Act)
• If findings of some chairs are considered
  problematic, it should be addressed through
  training and guidelines to ensure competent
  persons as chairs
• Sometimes departments charge employees not
  performing with misconduct instead of following
  more protracted poor performance procedure

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CONTINUATION OF DISCIPLINARY HEARINGS IN NEW
DEPARTMENT

• Provision made for institution/continuation of
  disciplinary hearing by new department iro
  alleged misconduct by employee at his/her former
  department
• New head may do so or, if requested by former
  head, must do so
• Two departments must co-operate, e.g.
• Exchange documents
• Furnish written oral evidence
• (new section 16B(4) (5) in cl 24)

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SUMMONING WITNESSES

• MPSA empowered to make regulations on-
• power for chairs of disciplinary hearings to
  summon employees other persons
• travel, subsistence other costs for witnesses
  at disciplinary hearings
• (new section 16B(3) in cl 24)

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GROUNDS OF DISMISSAL

• Grounds for dismissal aligned with those
  recognised under Labour Relations Act, i.e.
• Misconduct
• incapacity due to poor performance
• ill health
• operational requirements
• (new section 17(2) in cl 25)

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ABSCONDMENT

• Abscondment provisions revised (new section 17(3)
  in cl 25)
• Period of absence reduced from one calendar month
  to 10 working days educators 14 days
• Deemed resignation to exclude applicability of
  disciplinary procedures
• However, re-instatement procedure retained
• Accords with Supreme Court of Appeal judgment,
  Phenithi v Min of Eductaion Others 2006 9
  BLLR 821 (SCA) iro similar provision in
  Employment of Educators Act
• Dismissal by operation of law. Not in conflict
  with LRA and Constitution because hearing not
  totally excluded (i.e. re-instatement procedure).
  Objectives are reasonable justifiable

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SUPERVENING IMPOSSIBILITY

• Provision for supervening impossibility
• If employee is unable to fulfill terms of
  contract for reasons other than poor
  performance/ill health, e.g. long imprisonment
  (period to be prescribed)
• contract automatically terminates
• employee is deemed to have resigned
• However, also provision for re-instatement
  procedure
• (new section 17(5) in cl 25)

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PROHIBITION ON RE-EMPLOYMENT IF DISMISSED FOR
MISCONDUCT

• Prohibition on re-employment in public service
  for prescribed period of employees dismissed for
  prescribed categories of misconduct
• Emphasize misconduct corrupt related misconduct
• Different periods may be prescribed by regulation
  for different categories of misconduct
• One/more categories of misconduct may have no
  prescribed period, i.e. therefore no prohibition
  on re-employment
• (new section 17(4) in cl 25)

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OUTSIDEREMUNERATIVE WORK

• Proposed omission of current requirement that
  employee must place whole of his/her time at
  States disposal
• This is to accord with BCEA
• Propose inclusion of criteria for granting/
  non-granting of approval for outside remunerative
  work, i.e. whether it would
• interfere with or impede effective/efficient
  performance of work
• constitute contravention of code of conduct, e.g.
  conflict of interest (cl 26)

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GRIEVANCES

• Currently employees grievances must be attempted
  to be resolved within department, including
  referral to relevant Minister/Premier/ MEC, and
  only then referred to Public Service Commission
  (PSC)
• If head of department has grievance most likely
  to be about his/her Minister/Premier/MEC
• Therefore proposed that heads of department be
  allowed to submit grievances directly to PSC
• Employees, except heads, to first exhaust
  grievance procedure within department before
  referring labour disputes to bargaining council
  (cl 31)

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POLITICAL RIGHTS

• Provisions iro political rights of employees
  omitted dealt with in Constitution
  limitations in code of conduct (current section
  36)
• Candidatures of employees for legislatures are
  proposed to be regulated in Public Service Act
  (cl 32)
• May be candidates subject to prescribed
  conditions
• Only deemed to have resigned from date assuming
  duty

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REGULATION-MAKING POWERS

• Regulation-making powers aligned with areas that
  norms standards may be determined also
  simplified
• Currently, authorises making of regulation for
  deviations for regulations
• No provision for retrospective effect for
  deviations
• Propose provision for this, but only if in the
  public interest and not to regulations, not
  collective agreements, regulating matters of
  mutual interest, permitted
• (cl 35)

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DELEGATION POWERS

• Currently, Public Service Act only expressly
  authorises executive authority to delegate
  certain functions
• Similar to PFMA, propose comprehensive provision
  for delegation of all functions vested by Act or
  regulations in-
• executive authority
• head of department
• Conditions may be imposed when delegating
  functions
• Though delegated, original functionary remains
  accountable for how functions are exercised
• Delegated functions may still be exercised by
  original functionary
• Delegations may be withdrawn (cl 37)

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Siyabonga/Ri a livhuwa/Re a leboga/Dankie/Thank
you
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